LA2902 Environmental law assessment task 2
Lerista allanae Retro Slider © 2010 Eric Vanderduys
Paul Jackson note: This essay was the major assessment for LA2092 Environmental Law at JCU Cairns in 2018. The assignment was worth 35% of course grade. The future of Queensland's environment, and so many listed or threatened species and habitats, is essentially in the hands of the Office of the Coordinator-General. Jobs and economic growth inevitably trump the fragile and bruised environment when a large mining operation comes to town, for 30 years.
This essay assessment grade: High Distinction
Paul's LA2092 course grade: High Distinction
Olive Downs Mine Site and Access Road by proponents Pembroke Resources South Pty Ltd (Olive Downs), would be an open cut mine and access road (the Action) in the Bowen Basin, near Moranbah in South East Qld. The Action is essentially an expansion 20 times the size of the contiguous Olive Downs North mine also owned by the proponents. The open cut mine operation, and access road which will cross the Isaac River several times are likely significant impacts. Water resource impacts, including a “localised change in groundwater flow, generally a reversal of direction” enliven EPBC assessment and approval procedures. EPBC approval is also needed due to significant impacts on threatened species and communities within the project area, and migratory species. In determining whether the Action is approved, rejected, or approved with conditions, the assessment process for environmental approvals must navigate conflicts between a declared focus on economic priorities, and environmental priorities within Ecologically Sustainable Development (ESD). Thus, the challenge with Olive Downs is to as accurately as possible assess the mine’s potential EPBC impacts before the project begins. Robust mitigation measures need to be put in place to mitigate the cumulative impact of this Action in concert with Olive Downs North, and the separate rail spur, water pipeline and electricity line referrals directly related to this Action.
Relevant law, assessment and approval process
Overview and process
Olive Downs submitted an Initial Advice Statement (IAS) on 20 January 2017, and a referral several days later on 24 January. The Office of the Coordinator-General (OCG) gazetted Olive Downs a coordinated project on 17 February under s 26(1)(a) State Development and Public Works Organisation Act 1971 (SDPWO). The Department of the Environment and Energy (DEE) subsequently declared the action to be a controlled action on 3 March, which requires assessment of matters of national environmental significance (MNES) under The Environment Protection and Biodiversity Conservation Act 1999 (EPBC). Under a bilateral agreement with the Commonwealth, and pursuant to a “one stop shop” approach for environmental approvals the OCG will assess the Action under the EPBC, and SDPWO. In April 2018 the Environmental Impact Statement (EIS) is being prepared by the proponents with an opportunity for public consultation once the draft EIS is submitted to the OCG.
In addition to Native Title Act 1993 considerations, the EPBC has been triggered due to the prospect of significant impacts on MNES namely at least 24 listed threatened species and three communities, nine listed migratory species, and water resources. Additionally, the IAS identified impacts and State Government Approvals (note: not exhaustively identified) to be considered by the OCG under: Nature Conservation Act 1992 (NC Act) due to impacts on vulnerable species, and endangered species like the Star Finch (Eastern); The Mineral Resources Act 1989 due to requirement for relevant mining permit or licence; The Environmental Protection Act 1994 due to the mining of black coal and remediation needing financial assurance provisions; Water Act 2000 which is triggered by the taking and interference of overland flow water within the Fitzroy Basin, and associated volumes; and Regional Planning Interests Act 2014 due to possible impacts on nearby Strategic Cropping Areas. Interestingly the IAS identified approvals required under the Sustainable Planning Act 2009 which was repealed nine months prior to the IAS being submitted, and State Planning Considerations for this Action now fall under the Planning Act 2016 (Qld) (PA) which is the Act in force. The PA is applicable due to heavy earthworks, and the additional possibility that the Action may occur within a protected wetland area.
The EIS wholly produced by the proponents has two very important roles. Firstly, the EIS is used by the OCG to assess the application for approvals in Queensland, and separate EPBC approval by the DEE which relies on the assessment completed by OCG. Secondly, the EIS is relied upon by the public when making submissions after the draft EIS is submitted. Once the OCG has received both public submissions, and any additional information requested from the proponents, the final EIS is assessed for approval (and may at this stage be publicly notified). The OCG then issues their report for approval by the Commonwealth, and approvals by the state. The Action will be approved, rejected, or approved with conditions.
Critical Analysis of the Action
Olive Downs covers an area of 25 000 hectares, which is equivalent to a large block of land approx. 15km x 15km square. Olive Downs is an endeavour spruiked to last for 30 years, operate in a level 1 flood hazard zone, and extract 500 000 000 tonnes of coal before site remediation pats down the top soil and applies mitigation measures which “protect or enhance the ecological values of the Project area”. The EIS must address complex environmental issues. There are too many for this essay to offer a deep critical analysis so the assessment triggers below are offered to indicate the depth of assessment a thorough EIS would require for each impact. Additional to environmental concerns there is the clear conflict between economic and environmental priorities, and the requirement that Olive Downs’ EIS does not mislead. First a critical look at the Action and threatened species and communities.
The Action, and threatened species and communities
Endangered species within Olive Downs include Lerista allanae (Retro Glider) which is listed as endangered under both the EPBC and NC Act and is known to occur, likely to occur, or may occur in the project area.  Olive Downs’ project area has regional ecosystems of endangered remnant vegetation which the IAS specifically includes as Semi-evergreen Vine Thickets of the Brigalow Belt, and Brigalow (Acacia harpophylla) which is known Lerista allanae habitat. This is verified on environment.gov.au. Anthropogenic emissions of greenhouse gases is a ‘Listed Key Threatening Process’ to these endangered ecosystems. Olive Downs acknowledges (direct) emissions of greenhouse gases from onsite combustion of diesel fuels, explosives blasting and fugitive gas emissions and indicate they will monitor, manage, and report greenhouse emissions through participation in the National Greenhouse and Energy Report System. Mere monitoring, management and reporting of greenhouse gases is insufficient. The OCG should look to the Olive Downs EIS for concrete proposals to mitigate the impact of direct greenhouse gas emissions on the endangered remanent vegetation, and endangered species occurring within the project. If the EIS does not provide mitigation measures, then approval conditions that exclude or restrict the use of some greenhouse gas emission procedures may be required. These mitigating conditions should apply to all threated species and communities occurring within the project area including the vulnerable Fitzroy River Turtle, and critically endangered Southern Snapping Turtle.
The Action and Migratory species
Olive Downs IAS indicates nine migratory species likely to occur within the project area, including the critically endangered Calidris ferruginea (Curlew Sandpiper), and these are verified on environment.gov.au. Australia is a signatory to Japan-Australia Migratory Bird Agreement (JAMBA), the China-Australia Migratory Bird Agreement (CAMBA), Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA), and relies on taxonomy of the Bonn Convention. These agreements oblige Australia to help protect against wetland loss and degradation. Additionally, the Convention on Wetlands of International Importance (the Ramsar Convention) is instrumental in protecting the world’s wetlands. Australia was an early contracting party and in fact designated the world’s first Ramsar site. Looked at critically it appears striking that the distribution of Ramsar wetlands in Australia has a large hole in the State of Queensland. With intensive mining activity occurring within the Bowen Basin, which contains critically endangered habitats and critically endangered or vulnerable species, it seems remarkable that there is no Ramsar listed site away from the coast anywhere in Queensland. At a minimum the Olive Downs EIS should contain a robust Wetland risk assessment framework and protection plan. If not, this should be a condition of approval possibly requiring a Temporary Local Planning Instrument (TLPI) to prevent significant harm while an instrument is amended.
The Action and Water
Water impacts are a big issue for Olive Downs, which would operate within a level 1 flood hazard zone where floods have risen to 10 m in depth “near” (emphasis added) the project twice in the last 8 years. However, the IAS actually indicates a flood assessment overlay which intrudes well into, and effectively truncates the project area. It is within this area that Olive Downs proposes several crossings of the Isaac River for an access road into the project, and internally between the Olive Downs South Domain, and Willunga Domain components of the project. Additionally proposed are: flood levies; open cut pits as groundwater sinks; storage of water onsite; sediment dams; up-catchment diversions; on-site fuel storage; sewerage treatment plants; collection and reuse of surface runoff; capture of pit inflows; water extraction and flood harvesting; permanent landform changes including infill of open cut pits which would reverse groundwater flow direction; and groundwater supply from bores at locations yet to be decided. The cumulative impacts of this mega site on the project area, the Isaac River, wetlands and underground water systems is grave. The OCG should look to the EIS for comprehensive and advanced engineering plans, contingency plans, advanced modelling and more when approving, rejecting or approving with conditions the water uses of this project. Water impacts may be the most noticeable aspect of assessing the monetary value of Financial Assurance required by the company for remediation of the site post mining,  which is an application of the ‘polluter pays’ principle.
Information not to mislead
It is important Olive Downs EIS does not mislead. The Olive Downs’ IAS is a preliminary document, but with the assistance of the EIS Terms of Reference the EIS should be expected to clarify conflicting figures, and vague assertions within the IAS. For example, whether the project will produce 14 or 20 million tonnes of coal per annum. 20 million tonnes would be a 42% enlargement of the impact of the Action. 42% more diesel fuel and greenhouse emissions, 42% more blasting, 42% more water. The significant impacts on MNES based on 14 million tonnes per annum would need remodelling based on 20 million tonnes per annum. Further, IAS potential impacts under ‘Visual and Lighting’ and ‘Noise and Vibration’ give scant acknowledgement to impacts on threatened species and communities. Note also the IAS does not mention the words ‘Financial Assurance’ once. There are additionally questions of whether the Action has incorrectly disregarded the Great Barrier Marine Park Act due to the proximity of the mine within a wetland floodplain;  whether environmental offsets are sufficient; and whether all the correct in force legislation has been identified.
Economic v Environment interests
Prima facie it is astounding any mine like Olive Downs is able to proceed, but evidently they do. Government planning policy and legislation is weighted towards a focus on employment, and discretion is applied in favour of economic goals. The Planning Act 2016 defines ecological sustainability as having multiple economic considerations. The SDPWO focus is on applications with strategic significance to state, employment and economic benefits. The Isaac Regional Council Annual Report 2016-17 specifically welcomes new mining developments, and acknowledges mining as the biggest employment provider in the region. Similarly, the Queensland State Planning Policy 2017 states mining is “vital to the development of employment”. Environmental law therefore reflects liberal economic, rather than environment values. Combine this pro-development theme together with the ‘sheer enormity of the State and Territory approval systems’ and the true size of the beast becomes visible. Against this beast it is difficult for individual citizens to mount successful legal challenges against an Action like Olive Downs, due in part to the significant costs, although well-funded environmental organisations are prepared to do just that. However, the reality is the OCG, as the designated agency at the coalface of the assessment process, is the crucial arbiter. It is the OCG that holds the important power to mitigate significant impacts, and apply the prevention principle, polluter pays principle, or legislatively required precautionary principle.
Olive Downs’ EIS must address significant impacts affecting MNES under the EPBC, and satisfy Queensland requirements under SDPWO. The EIS must not mislead and needs to step up from the IAS in terms of accuracy, transparency, and mitigation measures. Given the pro-development chorus embedded within legislative and planning schemes the OCG will likely approve the mine. The future of Queensland’s regional ecosystems like endangered remnant vegetation, and critically endangered species like Lerista allanae and Southern Snapping Turtles are essentially in the hands of the OCG. The window for public consultation is small. It is a window framed towards mere observation, with fingers crossed on the outcome.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 12.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017), 33 <http://eisdocs.dsdip.qld.gov.au/Olive%20Downs/IAS/initial-advice-statement.pdf>.
 Booth v Bosworth  FCA 1453.
 The State of Queensland, Department of Infrastructure, Local Government and Planning, (July 2017) State Planning Policy, foreword <https://dilgpprd.blob.core.windows.net/general/spp-july-2017.pdf>.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017).
 Queensland, Queensland Government Gazette, 374 No 29, 17 February 2017 <https://www.statedevelopment.qld.gov.au/resources/project/olivedowns/extragazette.pdf>; A coordinated project satisfying an element of State Development and Public Works Organisation Act 1971 s 27(2)(b).
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 523.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 75.
 Department of the Environment and Energy (Cth) <http://www.environment.gov.au/epbc/one-stop-shop>; Chris McGrath ‘One Stop Shop for environmental approvals a messy backward step for Australia’ (2014) 31 Environmental and Planning Law Journal 164, 174.
 Mining leases must comply with provisions of the Act, and have regard for indigenous land use agreements.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 12.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18, 18A.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 20, 20A.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 24D, 24E.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 527E.
 Olive Downs Project, Initial Advice Statement (20 January 2017) 41-43.
 The Planning Act 2016 received assent on 25 May 2016, and replaced Sustainable Planning Act 2009 <https://www.dilgp.qld.gov.au/resources/planning/better-planning/snapshot-of-planning-act-2016.pdf>.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017) Fig 9, 22; Queensland Government data, Queensland Government, Queensland Floodplain Assessment Overlay <https://data.qld.gov.au/dataset/queensland-floodplain-assessment-overlay>.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017) Ecosystems, Flora and Fauna 33 para 4.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475; Mees v Roads Corporation  FCA 306.
 Department of the Environment and Energy, Australian Government, EPBC Act List of Threatened Fauna <http://www.environment.gov.au/cgi-bin/sprat/public/publicthreatenedlist.pl?wanted=fauna#reptiles_endangered>.
Department of Environment and Heritage Protection, Queensland Government, Allan’s lerista <https://www.ehp.qld.gov.au/wildlife/animals-az/allans_lerista.html>.
 Department of the Environment and Energy, Australian Government, Species Profile and Threats Database – Lerista allanae < http://www.environment.gov.au/cgi-bin/sprat/public/publicspecies.pl?taxon_id=1378>.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017) Fig 10, 25.
 Department of the Environment and Energy, Australian Government, Specific Profile and Threats Database – EPBC Act List of Threatened Ecological Communities <http://www.environment.gov.au/cgi-bin/sprat/public/publiclookupcommunities.pl>.
 Department of the Environment and Energy, Australian Government, Specific Profile and Threats Database – Listed Key Threatening Processes <http://www.environment.gov.au/cgi-bin/sprat/public/publicgetkeythreats.pl>.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017) 34; Sharon Christensen et al, ‘Regulating greenhouse gas emissions from coal mining activities in the context of climate change’ (2011) 28(6) Environmental and Planning Law Journal 1,2 re emissions from “upstream” activities like mining and transport of coal, and difficulty to mitigate.
 Department of the Environment and Energy, Australian Government, Specific Profile and Threats Database – EPBC Migratory Species Lists <http://www.environment.gov.au/cgi-bin/sprat/public/publicshowmigratory.pl>.
 Department of the Environment and Energy, Australian Government, Australia’s Ramsar Sites <http://www.environment.gov.au/water/wetlands/publications/factsheet-australias-ramsar-sites>.
 Queensland Government Wetlandinfo, Wetland risk assessment framework <https://wetlandinfo.ehp.qld.gov.au/wetlands/resources/tools/assessment-search-tool/25/>.
 Above n 18.
 Olive Downs Project, Pembroke Resources, Initial Advice Statement (20 January 2017), 21.
 Queensland Government data, Queensland Government, Queensland Floodplain Assessment Overlay <https://data.qld.gov.au/dataset/queensland-floodplain-assessment-overlay>.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 292-307; Guideline for Financial Assurance under the Environmental Protection Act 1994 <https://www.ehp.qld.gov.au/assets/documents/regulation/era-gl-financial-assurance-ep-act.pdf>.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475; Mees v Roads Corporation  FCA 306.
 The Department of State Development, Terms of reference for an environmental impact statement: Olive Downs Project (June 2017) < http://eisdocs.dsdip.qld.gov.au/Olive%20Downs/ToR/ftor-olive-downs-project.pdf>.
 Olive Downs Project, Initial Advice Statement 20 January 2017, headline 14 Mtpa statement on ES-1 and company website at odds with 20 Mtpa estimates on page 4 and page 8. Increased Mtpa would be an enlarging factor on all aspects of the Action.
 Department of Local Government and Planning, Queensland Government, Mackay, Isaac and Whitsunday Regional Plan (February 2012), 12 <https://www.dilgp.qld.gov.au/resources/plan/miw/miw-regional-plan.pdf>
 Philippa England and Amy McInerney, Anything goes? Performance based planning and the slippery slope in Queensland planning law (2017) 34 Environmental and Planning Law Journal 238.
 Planning Act 2016 (Qld) s 3(2)-(3).
 State Development and Public Works Organisation Act 1971 ss 23, 27, 55, 76A, 76E, 153AC, sch 2 definition of environment.
 2016-17 Annual Report connecting our communities Isaac Regional Council 8 <https://www.isaac.qld.gov.au/documents/12238/7866e2a2-78ee-48df-95a5-c1ac3f43f7a0>.
 The State of Queensland, Department of Infrastructure, Local Government and Planning, (July 2017) State Planning Policy, 33 <https://dilgpprd.blob.core.windows.net/general/spp-july-2017.pdf>.
 Geoffrey W G Leane, ‘Green Paradigms and the Law’ Southern Cross University Press (1998) 2.
 Chris McGrath ‘One Stop Shop for environmental approvals a messy backward step for Australia’ (2014) 31 Environmental and Planning Law Journal 164, 166.
 Andrew Macintosh, Heather Roberts and Amy Constable, ‘An Empirical Evaluation of Environmental Citizen Suits under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2017) 39 Sydney Law Review 85, 93.
 Mary Heath and Peter Burdon, ‘Silencing of activism in Australian law’ (2017) 42(3) Alternative Law Journal 190, 191 (Tony Burke).
 Planning Act 2016 (Qld) s 5(2)(a)(ii); Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 391; See also General Assembly, United Nations (12 August 1992) Rio Declaration on Environment and Development Principle 15 <http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm>.